Andrew Wilkie (Clark, Independent) Share this | Hansard source

I will not attempt to stand in the way of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021; I certainly won't be calling a division. But I would like to take this opportunity to voice some concerns that I do have with the bill, and I think I speak for many Australians who would share these views. First and foremost I disagree in principle with the whole idea of what would amount to indefinite mandatory detention, and in extreme circumstances that's what this bill would allow—that someone who has had their visa cancelled and for whatever reason is unable to be returned to their country of origin could be held in immigration detention for the rest of their days. I do want to put on the public record that I strongly disagree with that as a matter of principle.

I also disagree with the whole notion of disrespecting the rulings and the intent of the Federal Court. I think it is poor practice that whenever the Federal Court rules against the government, the government just keeps changing the law until it finds a workaround for the Federal Court. I also disagree strongly in principle with the idea of retrospectivity. Retrospectivity, clearly, as a matter of high principle, should be avoided at all costs and only be used in the most extreme of circumstances. Of course, indefinite mandatory detention is at odds with numerous international agreements that this country has signed up to in good faith. One of those international agreements, which I often refer to in this place, and will again, is the Rome Statute, where it is explicitly detailed that it is a crime against humanity to hold anyone in detention indefinitely. That of course, as I've remarked already, would be allowed for under this bill if it should become law.

The bill is also an unreasonable extension of the power of the state. Over the last 20 years or so, there have been countless laws made in this place when it comes to immigration and immigration detention. Probably the most dramatic and memorable of those laws was the excision of Australian offshore territories and islands from our migration zone. To this day, I think it was the most bizarre—and it would be laughable if it wasn't so wrong—decision made in this place some years ago. I remember a cartoon in one of the newspapers, where it had the immigration minister at the time standing next to Uluru, saying: 'They touched the rock. They can stay.' It was funny in some ways, but very, very sad, and very, very true in other ways, as far as the point it was making. I take this opportunity, in talking about the overreach of the power of the state, to say that it has to do with not just immigration matters but so many other matters, most obviously national security, where almost 100 different laws have been made by this parliament since the 9/11 terrorist attacks, many of which have been quite unnecessary and are very worrying extensions of the power of the state.

It's not like we don't have alternatives to what we're about to decide upon in this place. As recently as February this year I introduced into the parliament a private member's bill, the Ending Indefinite and Arbitrary Immigration Detention Bill 2021, which received no support from the government, nor from the alternative government. I take this opportunity to remind honourable members of that bill, because it just goes to show that there are viable alternatives to the way we detain people in this country. That bill, if it were ever to become law, would abolish unlawful mandatory detention of asylum seekers, refugees and noncitizens. By the way, in doing so, it would have the effect of ending offshore detention. I do note that in last night's budget even more money is being thrown at increasing the capacity of the Christmas Island detention facility. How many billions of dollars after billions of dollars is this country going to throw at offshore detention before we realise we have to find better and more humane—and lawful, in international law—ways of dealing with irregular immigration?

The bill provides that community alternatives to immigration detention will always be preferred to detention behind wire and bars. The bill ensures that those in alternatives to immigration detention have full access to housing and financial support and have the right to work and the right to education, health care and other government services, as required under international law.

The bill that I introduced earlier this year, the alternative to what we're talking about tonight in many cases, includes specific conditions on how and why a person can be detained. It disallows long-term and arbitrary detention by setting limited time frames to ensure that an individual's detention period is as short as possible. The bill would remove the abhorrent and torturous conditions that detainees currently experience by ensuring their access to information and services. Importantly, every decision under my bill, the alternative to tonight's in many cases, would allow every decision to be subject to independent oversight and prompt review and not to be at the whim of the minister of the day. Sure, the ministers of the day will often be fine people who make sound decisions, but we should never have in place laws that would allow some ministers to act improperly.

The bill that I'm referring to is urgently needed. I think that in coming in here and debating what we're debating tonight—a bill that under Australian law would legalise indefinite arbitrary detention—we see again very, very clearly how important alternatives are, and we should be coming in here and debating them. I can't believe that the government has not even allowed the debate of my bill, which would provide an alternative to arbitrary indefinite detention.

Let's not forget that arbitrary immigration detention, as practised in this country and as legalised tonight, is immoral and illegal under international law. It is immoral, in that we have a moral obligation to give people protection, to hear their claims and to give them refuge if their claims are accurate. If someone is found to be a refugee, we should give them permanent refuge in this country and access to all of the services and opportunities that are enjoyed by the rest of us. It is illegal to have indefinite mandatory detention, because it's in contravention of numerous international agreements. Sure, tonight we might legalise something in this country under Australian law, but in doing so we will be at odds with so many international agreements that the members of this House in years gone by have debated, scrutinised, signed and ratified in good faith—agreements like, obviously, the refugee convention; the refugee protocol; the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of all Forms of Discrimination Against Women; the Convention on the Rights of Persons with Disabilities; the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and, of course, the Rome Statute, which I've already referred to.

I'll close there. I've made my point. I'm talking not just to matters of international law but also to matters of high principle. It is wrong in principle to be prepared to legalise the detention of people—and to legalise and go ahead and detain people—in this country indefinitely, arbitrarily and without trial. To be fair to the government, yes, genuine efforts to safeguard against people being sent back to harm should be welcomed. That point has been made by other contributors to the debate tonight. But such safeguards must be part of changes to stop people languishing in indefinite detention. This bill is targeted at giving the government more power to detain refugees and hold them in detention indefinitely. That's the bottom line. Indeed, this bill will make the current trend of long-term warehousing of refugees in detention even worse.

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